Emergency Urgent: District Of Oregon Seemingly Errs In Deeming Testimony Concerning E-Mails Beyond Scope of Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

So, let's say that a party wants to introduce testimony concerning e-mails but does not produce those e-mails. Can the party get around the Best Evidence Rule by claiming that it is not proving the contents of those e-mails and is instead merely proving the witness' opinions/impressions of the content of the e-mails? According to the recent opinion of the United States District Court for the District of Oregon in HTI Holdings, Inc. v. Hartford Cas. Ins. Co., 2011 WL 3704821 (D.Or. 2011), the answer is "yes." I disagree.

In HTI Holdings, 

Defendant Hartford Insurance Company insured plaintiff HTI Holdings, Inc. During the coverage period, HTI suffered a loss and made a claim. After disagreement about the manner in which the claim was handled, HTI filed this action alleging breach of contract, negligence, breach of the implied covenant of good faith and fair dealing and tortious interference with prospective economic advantage claims. Hartford brought counterclaims for declaratory judgment and breach of contract.

Specifically, HTI manufactures water purification products which utilize a patented “forward osmosis” system, and

In early 2007, HTI sent a letter to its shareholders reporting a net loss for 2006 and that short term borrowing exceeded cash and receivables. The letter reported that the company was in trouble due to the National Guard's decision not to order its products, but the company expected to generate between five and seven million dollars in revenue in 2007 due to pushes into the military, disaster relief, and retail markets. About a month later, on March 17, 2007, a fire at HTI's manufacturing plant completely destroyed its production equipment. HTI made a claim for the loss.

While Hartford paid HTI $621,000 for personal business property losses and $150,000 in business interruption proceeds, HTI claimed that the payment for business interruption proceeds was too low while Hartford countered that HTI was in worse financial shape than it claimed.

This led to the aforementioned deposition testimony concerning e-mails. Here is what Robert Salter, the former Chairman and Chief Executive Officer of HTI, said about e-mails in his declaration:

Similarly, Hartford also misrepresented facts that it had discovered during its "investigation" of our business interruption claim. For example, I was one of several participants in a conference call in which Hartford's accountants interviewed the General Manager of one of our primary customers. The General Manager unequivocally stated that she anticipated that her company would have purchased 98,000 water filtration devices from us during the first year of our contract if the fire had not destroyed our plant. Despite contemporaneous emails confirming her anticipated purchase of 98,000 units, Hartford's accountants denied that the General Manager ever made any such statement. Hartford's refusal to acknowledge this projected purchase resulted in a reduction of more than $1 million in business interruption proceeds owed to HTI.

Now, I don't have the deposition testimony from Salter or Linda Lemer, who worked for HTI's vendor, but here is what the District of Oregon had to say about their testimony in response to HTI's Best Evidence objection:

HTI seeks to strike exhibit K (Lemer's deposition) and pages 162–168 of exhibit P (Robert Salter's deposition) on the grounds that the cited testimony in each violates FRE 1002, the "best evidence" rule. A review of the exhibits reveals that although both deponents are generally testifying about emails, they are not attempting to recount the content of the documents in their testimony. Instead, each discusses their opinions/impressions of the content of the emails. For example, Salter states that he does not recall other discussions, aside from those in an email, with public adjusters and whether there is a sense of urgency communicated in various emails. The best evidence rule does not preclude these exhibits.

Now, it is difficult to tell from the court's opinion the exact nature of the deposition testimony by Salter and Lemer concerning the e-mails. Presumably, though, this testimony dealt with the proposed purchase and the interactions between Salter/HTI and public adjusters. And Salter apparently testified concerning the content of those e-mails, the fact that those e-mails were the only communications with public adjusters, and his opinion on whether those e-mails conveyed a sense of urgency. In other words, Salter (and presumably Lemer) were trying to convey not only what the e-mails said, but what they interpreted as the tone of those e-mails.

The way I see it, such testimony violated the Best Evidence Rule even more than classic testimony about the content of a document such as an e-mail. The whole point of the Best Evidence Rule is that a witness might be lying and/or mistaken about the content of a writing, which is why a party trying to prove the content of that writing must produce the original writing or account for its nonproduction. When a witness, however, goes beyond the content of a writing and tries to convey the tone of that writing (whether the e-mail conveyed a sense of urgency), the possibility of a mistake greatly increases. Thus, I can't agree with the District of Oregon that there was no Best Evidence Rule violation.

-CM